Smart Borders: EU Entry/Exit System, EU Legislation in progress

Briefing
EU Legislation in Progress
July 2016
Smart Borders: EU Entry/Exit System
OVERVIEW
In anticipation of increased traveller flows and in response to security concerns
regarding the control of EU external borders, on 6 April 2016, the Commission
presented a revised proposal for establishing an Entry/Exit System for recording the
border-crossings of all non-EU nationals. It builds on the Smart Borders package
presented in 2013, which did not secure consensus among the co-legislators and was
the subject of additional technical and operational studies completed in 2015.
Under the new proposal, the current system of manual stamping of passports would
be replaced by automation of certain preparatory border control procedures. The
system would be interconnected with the Visa Information System (VIS) database and
used by the same authorities: border control and consular posts. Moreover, it would
allow law enforcement authorities to perform restricted queries in the database for
criminal identification and intelligence to prevent serious crime and terrorism.
Proposal for a regulation of the European Parliament and of the Council establishing an
Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third
country nationals crossing the external borders of the Member States of the European Union
and determining the conditions for access to the EES for law enforcement purposes and
amending Regulation (EC) No 767/2008 and Regulation (EU) No 1077/2011
Committee responsible:
Shadow rapporteurs:
Civil Liberties, Justice and Home Affairs
(LIBE)
Agustín Díaz De Mera García Consuegra
(EPP, Spain)
Tanja Fajon (S&D, Slovenia)
Jussi Halla-Aho (ECR, Finland)
Maria-Christine Vergiat (GUE/NGL, France)
Jan Philipp Albrecht (Greens/EFA, Germany)
Beatrix von Storch (EFDD, Germany)
Next steps expected:
Discussions in LIBE Committee
Rapporteur:
COM(2016)0194
of 06.04.2016
procedure ref.:
2016/0106(COD)
Ordinary
legislative
procedure (COD)
(Parliament and
Council on equal
footing – formerly
'co-decision')
EPRS | European Parliamentary Research Service
Authors: Anita Orav, Alessandro D'Alfonso
Members' Research Service
PE 586.614
EN
Smart Borders: EU Entry/Exit system
EPRS
Introduction
In 2015, over 50 million third-country nationals (TCN) visited the European Union,
accounting for more than 200 million border crossings. The growth in cross-border
travel is expected to continue, which means that Member States will need to adjust the
reception capacity of their border management systems.
At the same time, the unprecedented migratory flow into the EU reached a new high in
2015, with 1.8 million irregular border crossings reported by Frontex. Border
management capacities were exhausted at the main points of irregular entry along the
external border of the EU, which enabled the mixed flows of asylum-seekers and
migrants to travel onwards within the Schengen area. These developments put strong
pressure on the Schengen area of free movement, which is perceived as one of the
most recognisable achievements of the EU, and created tensions between Member
States.
Moreover, increased traveller flows need to be considered in a new security context,
due to risks of serious crime and terrorism arising from the threat posed by ISIL/Da'esh,
radicalisation and foreign fighters. After the terrorist attacks in Europe in 2015, several
gaps were identified in the use of tools for exchanging information between Member
States.
In line with calls from the European Parliament and the Council, and building on its
earlier Smart Borders initiative, on 6 April 2016, the Commission presented a proposal
for establishing a new system for registering the entry and exit of non-EU nationals
crossing the external borders of the Member States. The proposal is now being
discussed by the co-legislators. The Commission hopes for adoption of the proposal by
the end of 2016, and for the Entry/Exit System to become operational by 2020.
Existing situation
In the field of border management, the EU has developed three centralised information
systems that address different objectives: the Schengen Information System (SIS); the
Visa Information System (VIS); and Eurodac. While VIS and Eurodac focus on thirdcountry nationals and have law enforcement as an ancillary objective, SIS is also
relevant to EU nationals and directly supports both external border control and law
enforcement cooperation.
Table 1 – Centralised border management systems in the EU
Schengen Information
System (SIS)
Visa Information System (VIS)
Eurodac
SIS is a large-scale information
system that enables lawenforcement authorities, such
as police and border guards to
enter and consult alerts on
suspected criminals, people
who may not be entitled to
enter into or stay in the EU, on
missing persons and on stolen
or lost property.
VIS is used at all Schengen
external border crossing
points and in consulates
outside the EU to exchange
and process visa applications
and decisions, also through
means of biometric matching,
based on fingerprints for
identification and verification.
Eurodac is a biometric
database in which Member
States are required to enter
the fingerprint data of
irregular migrants or asylumseekers to identify where they
entered the EU, and thus
determine the Member State
responsible for examining
their asylum application.
Source: European Commission, DG HOME
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Smart Borders: EU Entry/Exit system
In addition to the three central systems developed by the EU, a number of other
information systems related to border management and/or law enforcement are
available in the EU, each with particular institutional, legal and policy contexts.
Examples are Interpol's Stolen and Lost Travel Documents database, Advance Passenger
Information (information on passengers ahead of inbound flights to the EU) and the
European Criminal Records Information System (ECRIS).
While the existing information systems for border controls and/or law enforcement
cooperation cover a wide range of data and functionalities, this complex landscape
includes some shortcomings: different governance systems; information gaps;
fragmentation; limited interoperability and possible inconsistency between databases.
One information gap identified by the European Commission concerns the systematic
recording of external border crossings movements of all third-country nationals visiting
the Schengen area for a short stay (maximum 90-day period in any period of 180 days)
and the related tracking of the time spent within the area. At present, the only means
that relevant authorities have to calculate the duration of stay of a third-country
national in the Schengen area and to verify their potential overstay, is the stamping of
their travel document with the dates of entry and exit. This method is deemed to be
slow and error-prone, since the entry/exit stamps may be unreadable or counterfeit.
According to the Commission, this information gap may have a negative impact on a
number of fields, including: the quality and speed of border controls involving third
country nationals; the systematic and reliable monitoring of third-country nationals'
authorised stay within the Schengen area; and the possibility to identify third-country
nationals who have destroyed their official documentation after entering the Schengen
area. With a view to addressing these shortcomings, the European Commission has put
forward a revised proposal to establish an Entry/Exit System (EES), a new centralised
information system based on biometrics that would be interconnected with VIS and
focus on third-country nationals.
Comparative elements
In February 2013, the Commission reported that 13 EU Member States (Bulgaria,
Cyprus, Estonia, Finland, Hungary, Latvia, Lithuania, Malta, Poland, Portugal, Romania,
Slovakia and Spain) were implementing national Entry/Exit systems collecting relevant
records of third-country nationals crossing their respective external borders. However,
these systems cannot provide data on travel flow and movement of third-country
nationals across the external borders of the Schengen area, since they are not linked to
similar systems in other Member States. For example, a third-country national entering
the area in a Member State using such a national system may exit from a different
Member State, which results in the impossibility of matching entry and exit records.
Parliament's starting position
Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) had actively
worked on the 2013 proposal for the establishment of an EES, prompting a debate that
contributed to the 2016 revision of the proposal. Relevant initiatives include a January
2015 working document by the rapporteur, which identified key issues for
consideration, such as: the possibility of granting security forces access to the system;
the guarantee of data protection (through the principles of proportionality and need);
interoperability with pre-existing national systems, with a view to reducing costs and
easing maintenance; and the need to take into account the lessons learnt from the
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experience with the development of SIS II. In February 2015, the LIBE Committee
organised a meeting on Smart Borders with representatives of national parliaments. On
9 June 2015, a debate on the first version of the Smart Borders Package was held in
plenary with the participation of Dimitris Avramopoulos, European Commissioner for
Migration, Home Affairs and Citizenship.
Preparation of the proposal
The first version of the Smart Borders package tabled in 2013 raised a number of
contentious issues that were subsequently assessed in a so-called 'proof of concept'
exercise to evaluate the technical, organisational and financial impact of possible
solutions. The first stage of the exercise consisted of an additional Technical Study
(including a new Cost Analysis), completed in October 2014, which explored numerous
options in relation to biometrics, border control processes, data, architecture and costs,
with a view to identifying a limited number of suitable solutions to be tested in the next
phase. The second stage, a one-year pilot project, carried out by the European Agency
for the Operational Management of large-scale IT systems (eu-LISA), tested the
identified set of technical options against measurable criteria (e.g. accuracy,
effectiveness and impact on border-crossing duration), complemented the results with
desk research and collected feedback from travellers and border guards. In
November 2015, the pilot project final report assessed the feasibility of using biometric
identifiers at external Schengen borders positively. The proof of concept exercise, and
the consideration of a series of relevant developments which have intervened since the
tabling of the initial proposal (e.g. visa liberalisation dialogues; the Court of Justice of
the EU judgment on the Data Retention Directive; and EP and Council political
agreement on the reform of data protection rules), contributed to the revision of the
2013 package. This has resulted in a revised proposal for the EES and the withdrawal of
the proposal to establish a centralised Registered Travellers Programme (RTP). The
revised proposal is accompanied by a new impact assessment.
Under the 2014-2020 Multiannual Financial Framework (MFF), the financial implications
of the EES proposal are covered by the Borders and Visa instrument of the Internal
Security Fund (ISF), which earmarks €791 million for the development of IT systems
supporting the management of migration flows across EU external borders. The revised
EES proposal estimates the budget needed for the new system at €480 million, which
would allow reallocation of the remaining €311 million to other ISF measures, as set out
in Regulation (EU) No 515/2014. The financial resources the Commission estimates as
necessary are down from €1.1 billion in 2013, when the figures covered two systems
(EES and RTP) instead only the EES, and a longer timeframe (development and
operation between 2015 and 2020 versus 2017-2020 in the new proposal). In addition,
modifications included in the new EES proposal have had an impact on the estimated
costs of the system – for example to consider the technical options for interoperability
with other systems, as well as the higher costs entailed by a longer data retention
period.
According to the Commission, the design of the proposal takes lessons learnt from past
developments of other large-scale IT systems into account, such as the second
generation of the Schengen Information System (SIS II), to which the European Court of
Auditors devoted its Special Report 3/2014. In particular, the Commission says that the
proposal: 1) makes the start of the development conditional on the final adoption of the
underlying legal instruments, to avoid incurring possible cost overruns and delays due
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to changing system requirements; 2) includes in the €480 million budget the
reimbursement of all the integration costs incurred by the Member States, with a view
to avoiding possible delays in the developments of the system at national level and to
enabling the Commission to monitor the advancement of these developments; and
3) tasks eu-LISA with developing not only the central system but also a common
national uniform interface (NUI), so as to facilitate the coordination of the
implementation.
The changes the proposal would bring
The proposal brings out three main objectives: 1) improve the management of external
borders; 2) reduce irregular migration, by addressing the phenomenon of overstaying;
and 3) contribute to the fight against terrorism and serious crime and ensure a high
level of internal security.
One of the main changes would be that the manual stamping of passports at border
checks would be replaced by registration in a database. The proposal gives Member
States the possibility to automate most of the data- and information-capturing steps
that are currently undertaken by border guards performing border checks on non-EU
nationals. The new system would apply to all TCNs, whether visa-required or visaexempt, thus significantly expanding the EU's biometric information system. To balance
the expansion, the set of biometric data would be reduced, compared to the previous
proposal (four fingerprints and facial imaging, instead of 10 fingerprints).
By using self-service systems and e-gates, TCN travellers would have their data verified,
their picture or fingerprint taken and a set of questions asked. Visa-required travellers
would also be able to see the maximum length of their authorised stay. While using the
self-service system, all mandatory checks would be triggered in the security databases
(SIS, Interpol Stolen and Lost Travel Documents database). By the time the traveller is
guided towards a border control lane, all this information would have reached the
border guard, who may ask additional questions before granting the passenger access
to the Schengen area.
EES would be used by the same authorities that already use VIS: consular posts and
border control. EES and VIS could be interconnected, which would help reduce
duplication of data processing, in accordance with the 'privacy by design' principle. The
Commission states that EES would fit into the current border management architecture
and would be interoperable with existing systems.
The automation of the preparatory steps is expected to reduce the workload of border
guards. This would mean that that Member States would not have to hire extra border
guards to accommodate the growing traveller flows. It is also expected to reduce the
long queues before passengers reach the border checkpoint. The Commission notes
that the automated preparation phase would free up border guards' time, which could
be used more valuably to assess each individual situation, thus contributing to
enhanced internal security.
In the same vein, another important change is law-enforcement access to the EES,
permitting national law enforcement authorities as well as Europol to make queries for
criminal identification and criminal intelligence. As expected outcomes, the Commission
asserts that EES will support the identification of terrorists, criminals and suspects, but
also victims of crime. By providing a record of their travel histories, it would
complement the alerts recorded in the SIS.
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The accompanying proposal amending the Schengen Borders Code as regards the use of
the Entry/Exit System will also provide a harmonised legal basis for the establishment of
national Registered Travellers Programmes by Member States on a voluntary basis. This
entails pre-vetting frequent travellers in a specific Member State in the Schengen area,
to speed-up their border-crossings. A separate proposal for establishing a centralised
Registered Travellers' Programme has, however, been withdrawn in the revised Smart
Borders Package.
Advisory committees
The two advisory committees have not yet presented their opinions.
The Committee of the Regions will resume working on this dossier in the light of its
opinion on the 2013 proposal.
Work is under way in the European Economic and Social Committee (EESC), with the
Employment, Social Affairs and Citizenship section opinion expected to be adopted at
the plenary session of 21-22 September 2016. Work will build on the EESC opinion
adopted on the 2013 proposal.
The EESC, in its opinion adopted on 10 December 2015 on the European Agenda on
Migration, asserted that 'the concept of smart borders is welcome and overdue' but
highlighted that it should not violate the human rights of migrants and that it 'must fully
respect fundamental rights and freedoms'.
National parliaments
The deadline for subsidiarity check in national parliaments was 28 June 2016. No
reasoned opinions have been issued although several parliaments opened political
dialogues.
The previous 2013 proposal was not challenged in Member States' parliamentary
scrutiny, but political dialogue with the Commission was opened by the Czech Senate
and the Romanian Chamber of Deputies, both expressing their support for the proposed
instruments.
Stakeholders' views
The main points raised by the stakeholders1 remain the same as for the 2013 proposals:
possible fundamental rights implications and cost efficiency of the system.
Data protection
The proposed system needs to be assessed from a data protection aspect, since it would
lead to fingerprinting all TCNs, thus retaining large amounts of both personal and
biometric data. The European Data Protection Supervisor (EDPS) in his 2013 Opinion
warned against the risk of violating a person's rights under the EU Charter of
Fundamental Rights, particularly rights to respect for private and family life (Article 7)
and protection of personal data (Article 8). Commenting on the data protection
perspective of the Smart Borders package in November 2015 (prior to the publication of
the new proposal), the European Data Protection Supervisor, Giovanni Buttarelli, noted
that the new system has to 'achieve apparently contradicting purposes: facilitate
mobility while keeping borders safe, with low costs, error-free and fully respecting
fundamental rights (dignity and protection of personal data)'. He noted that large-scale
collection of personal data always requires significant justification.
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As regards law enforcement access, the EDPS noted that requests to access data should
always be proportionate, narrowly targeted, and triggered by a suspicion as to a specific
person. He agreed with the Dutch Presidency recommendation to apply a preliminary
test (the so-called 'Schecke test' established in the CJEU case Volker und Markus
Schecke GbR (C-92/09)) to the EES, and concluded that the retention of data for law
enforcement purposes would lead to an interference with the fundamental right to
privacy, as it would apply to persons for whom there is no evidence suggesting any link
with serious crime. Moreover, he referred to the Digital Rights Ireland Ltd (C-293/12)
judgment, where the CJEU established that every collection, use and transfer to another
authority constitutes a separate interference with fundamental rights. This is relevant
for EES because law enforcement authorities would be accessing data originally
collected for other purposes (calculating visa duration).
This view is largely shared by EDRi, an association of civil and human rights
organisations from across Europe. Responding to the public consultation in
October 2015, EDRi expressed the view that data collection, as proposed within the
Smart Borders initiative, is disproportionate and unnecessary.
The Meijers Committee (Standing Committee of Experts on International Immigration,
Refugee and Criminal Law) issued a note for the attention of the European Parliament
on the 2013 proposal, expressing deep concerns regarding, inter alia, the
proportionality and feasibility of the proposals, data protection standards for the data
subjects, and possible law enforcement access to EES. It recommended the European
Parliament vote against the Smart Borders proposals of 2013.
Agency for Fundamental Rights survey on travellers' fundamental rights perceptions
The EU Agency for Fundamental Rights (FRA) conducted a survey as part of the tests on
the technical elements carried out within the pilot project by eu-LISA. To assess
travellers' perception of the proposed measures and their attitudes regarding
fundamental rights when using biometrics in border control, FRA interviewed more than
1 200 TCNs at seven land, sea and air border crossing points in 2015. The results
presented in the Smart Borders pilot final report revealed that more than half (60%) of
the respondents are comfortable with having their fingerprints taken and don't feel that
it violates their right to privacy (47%) or dignity (70%). It is, nevertheless, pointed out
that one fifth finds this procedure intrusive and humiliating. In addition to believing that
errors would be hard to correct in the system and that in case of a system breakdown
they would not be able to cross the border, over 80% of respondents insisted on the
need for information as to why their personal data is collected and processed.
Costs
In his opinion on the 2013 proposal, the EDPS raised questions on the cost efficiency of
the EES, including its financial aspects. A 2013 study carried out for the EP Civil Liberties
Committee criticised the Commission's costing of its initial proposal and recommended
carrying out a new costing analysis, which should include the financial implications for
the Member States. A 2013 paper published by the CEPS think tank agreed that the
Commission estimates in the first proposal were not financially sound. Statewatch also
reported criticisms on proposed costs and the broader proposal. The additional
Technical Study carried out for the Commission in 2014 included a new Cost Analysis,
which led to the revision of the financial implications of the EES in the updated proposal
tabled in 2016.
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Academic views
Assessing the use of smart surveillance technologies in border control, commentators
have pointed out that the objective of EES to catch visa over-stayers is not entirely
viable, as it will only identify people crossing the external borders and not those staying
in the EU irregularly. Concerning the obligation to give personal and biometric
information when crossing the border, they observe that refusal to be fingerprinted or
having a facial image taken may result in viewing the traveller as a risk.
Legislative process
The legislative proposal (COM(2016)0194) was presented on 6 April 2016. It falls under
the ordinary legislative procedure (2016/0106(COD)). In the European Parliament, the
proposal has been assigned to the Civil Liberties, Justice and Home Affairs Committee
(LIBE) and is awaiting discussions in committee before the rapporteur issues a draft
report.
EP supporting analysis
- EPRS Initial Appraisal of the Commission Impact Assessment 'The Establishment of an EU
Entry/Exit System', May 2016.
- EPRS Briefing 'Internal Security Fund (ISF)', April 2016.
- EPRS At A Glance note 'Smart Borders Package', June 2015.
- Policy Department C: Citizens' Rights and Constitutional Affairs study on 'The Commission's
legislative proposals on Smart Borders: their feasibility and costs', October 2013.
- Initial appraisal of a European Commission Impact Assessment 'Smart Borders Package:
European Commission proposal on the entry/exit data of third-country nationals crossing the
external borders of the EU', September 2013.
Other sources
Entry/Exit System (EES), European Parliament, Legislative Observatory (OEIL).
Endnote
1
This section aims to give a sense of the debate on the issues surrounding the legislative file and cannot provide an
exhaustive account of all the different views expressed. For an institutional perspective on stakeholder
participation, see the section on advisory committees. Additional information can also be found in related briefings
listed under 'EP supporting analysis'.
Disclaimer and Copyright
The content of this document is the sole responsibility of the author and any opinions expressed therein
do not necessarily represent the official position of the European Parliament. It is addressed to the
Members and staff of the EP for their parliamentary work. Reproduction and translation for noncommercial purposes are authorised, provided the source is acknowledged and the European Parliament is
given prior notice and sent a copy.
© European Union, 2016.
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http://www.eprs.ep.parl.union.eu (intranet)
http://www.europarl.europa.eu/thinktank (internet)
http://epthinktank.eu (blog)
First edition. The 'EU Legislation in Progress' briefings are updated at key stages
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